Damned if we disclose, damned if we don't disclose

Since I took over the post at the Bureau, I have been trying to change the public perception that the Bureau is only targeting the “small fish” but never the “big fish”.  I was once sent an anonymous letter which in Brunei we term as “surat layang” (literally this means “flying letter”).  The sender complained that the Bureau appeared to only take on the “small fish” and never the “big fish”.  Despite several complaints, the sender claimed that the Bureau never took any actions against the person the letter alleged to be corrupt.  The letter ended with a question “ACB tidurkah?” (Is the ACB asleep?).  I can assure the sender of the letter that we do not sleep on the information we receive.  However, he must realise the distinction between what is information and what is evidence. Our courts do not convict anyone based on information but purely on proven facts or evidence. They convict based on evidence gathered by law enforcement agencies like this Bureau carefully presented by the Public Prosecutor.  If information is based on one’s perception or his perceived conjecture, for instance, if the complainant stated that the he saw a minister playing golf with a businessman and he drives many expensive cars, therefore must be corrupt, this is hardly evidence under our law.  It is definitely a good first information for the Bureau to initiate its investigation.  It would only then become evidence, if the Bureau found out say one of the expensive cars driven by the Minister was actually paid for by the businessman friend in return for a government contract awarded to him.  The Bureau would still need to prove the fact that the businessman’s money was infact used to pay for the car driven by the Minister and indeed it was “corruptly” received or accepted by him.  The Bureau would still need to prove in some form of evidence that the car was a corrupt gratification in return for the favour which in this case was the Government contract.   I can assure everyone, we do not reject any information outright simply because the information is related to a “big fish”.  But what I cannot assure is that the information which is purely based on pure conjecture or assumption would lead to a subsequent prosecution.

Anonymous letters form essentially the bulk of the complaints and information that we receive at the Bureau. When the Bureau first receives the information, It is always impossible for the Bureau to distinguish which information is genuine or which information is solely intended to injure the reputation of someone especially if it is sent anonymously. The Bureau has a permanent complaint evaluation committee which comprises of senior officers of the Bureau whose responsibility it is to evaluate the information that we receive.  Information is then valued in accordance with the provisions of the Prevention of Corruption Act.  If the information does disclose possible offences of corruption as defined under the Act, a decision is then made collectively by the members of the committee either to initiate a discreet enquiry, perform further surveillance or open an immediate Investigation Papers (IP).  This is done essentially to build up the necessary evidence needed to prove someone’s guilt based on the first information the Bureau receives.  As of January this year, every complaint or information that we receive from the public is entered into a computer system.  This computer system is a fully integrated information and workflow management system that allows every complaint and information received to be processed completely from the time the information or complaint is received until it is fully investigated (if the decision is to open an Investigation Paper or IP). The complaint or information we receive will be given a computer Information Receipt (IR) number.  This number is generated automatically with a time stamp and it allows audit tracking on how the information and complaint gets processed at the Bureau. This avoids the possibility of the information or complaint received being lost or simply not processed through. 

Because of the nature of our investigation which relies heavily on intelligence gathering, we have to work in stealth. I cannot blame the public for having this impression that the Bureau appears to be "sleeping" on the information given. The difficulty that we often face is how to strike a balance between the need to be transparent to the complainant that we do appreciate his effort in providing us the information and the need to ensure that the person investigated is not stigmatized as corrupt when his guilt has not yet been proven by the competent court of law.  The Bureau also needs to work covertly simply because vital evidence could easily be lost or destroyed if the person investigated were alerted that investigation was initiated against him. This is indeed a case of damned if we don’t disclose and damned if we do disclose.

Part 1: Seeking Hari Raya Sponsorship and understanding The Subscription Control Act

I have been receiving a number of public complaints that certain departments have been going around seeking for "sponsorships in kind" to host their Hari Raya functions.  This so called "sponsorship in kind" is sought for the lucky draw prizes that the departments will give out to their employees during such gathering. Apparently this has become a tradition in some departments to the extent that they do not see anything unethical about it. Their argument is that the sponsorship sought is only "in kind"(non-monetary) and they never force the members of the public to contribute even if these members of the public have official dealings with the departments.  Further, they argue they have already sought approval from a relevant Ministry in seeking this "sponsorship".  

I am trying to understand this argument better by first comparing the practice anywhere else. Obviously countries that are ranked as least corrupt do not tolerate this practice in their civil service. Unless our civil service is to be compared with Chad or Somalia and many more of the worst ranked countries then this practice cannot be tolerated and it ought to stop.  I am not here to be a party spoiler of sort and ruin the real intention why this sort of function is organised in the first place. Indeed departments and government agencies are free to organise their private functions that will help foster better relationships amongst the employees and staff of these organizations. I wholeheartedly think that this is good way to build better bond and affinity amongst employees.  After all its not too often that employees can get together in a less formal setting where you see everyone's faces sparkled with merriment. However there ought to be certain acts which are off limits. If the actions of the departments might bring their reputation and integrity into question then the best decision is to avoid the actions altogether as I always believe, it takes a lifetime to build a good reputation and only one mistake to destroy it!

I am somewhat baffled at how this "approval" could be given in the first place. Herewith I will try to give some understanding on  some of the legal positions involved.

Let me state this outright that as a legal practitioner and as a common citizen, I hold dearly to the notion that Brunei is a country governed by law rather than by men. When power is exercised by men, it must first be assigned to him by law. This is the basic tenet of the principle a country with a Rule of Law. This is the reason why our Constitution clearly states that the Government has no right to impose any kind of tax or rate on the people unless it is authorised by law. This is the reason why any Government department or any public office cannot impose any financial burden on the people unless it is authorised by law.  

Thus any department which attempts to seek for public contribution either in pecuniary term or otherwise it must first be authorised by law. The relevant law in this instance is the Subscription Control Act.  This Act lays out clearly how the relevant approval should be acquired.   The extract of the relevant provision is as follows:

2. (1) No person shall without the prior authority of the Minister receive or solicit contributions or subscriptions from any other person — 

(a) for any purpose deemed to be a public purpose under this Act; or 

(b) for any purpose which the Minister may by notification in the Gazette declare by any general or particular description or in any particular case to be a purpose to which this section applies. 

(2) A purpose shall be deemed to be a public purpose within the 

meaning of this section if — 

(a) it relates to an object or matter which is normally the function or concern of Government or of any public or local 

authority; or 

(b) it is charitable; or 

(c) it is for the benefit of any race or community within Brunei Darussalam, including a community constituted by virtue of residence within a particular part or parts of Brunei Darussalam or by reference to the members of racial or religious groups so resident:

It is clear under the law that approval must be for a public purpose or a purpose declared in the gazette by the Minister. A "public purpose" is further defined in the Act which includes a charitable purpose. (to be continued)

The separation of powers of those who investigate and those who prosecute

When the Anti Corruption Bureau was established in 1982, its mission was to ensure the integrity of the public service through the effective enforcement of the Prevention of Corruption Act (PCA) by imposing punitive criminal sanctions against those who are found guilty of corrupt practices. This mission still holds true till this day and it is the main core business of the Bureau. 

We perform the tasks of investigating every complaint and report that we receive and complete the investigation papers (IPs) before we forward them to the Public Prosecutor.  It is the Public Prosecutor (PP) who is assisted by Deputy Public Prosecutors (DPPs) who assesses every IP that we forward and prefer the appropriate charges against the subject arrested in the IP. Under the Act, the sanction of the PP is required before every criminal prosecution can be commenced. This system ensures a check and balance between those who have the power of investigations and those who have the power to prosecute. 

There are more than one occasion that the Public Prosecutor disagrees with our findings which can result in a No Further Action (NFA) on the IPs forwarded.  The separation of powers ensures that no single authority has a complete domain on the way the criminal justice system works in this country. Personally and as a former DPP myself, I really honour this system as I know power corrupts and absolute power can corrupt anyone absolutely. I have kept reminding my officers that the system is put in place not to make our life more difficult but rather to ensure that our investigation is done in complete fairness. When there is an independent third party who assesses our investigation, there is always a conscious effort on every Investigation Officer to improve his quality of investigation.

Preventive measures on corruption

Our primary function at the Bureau is for the effective enforcement of the Prevention of Corruption Act.  This legislation is primarily a criminal law legislation that punishes anyone who is bent on corruption with severe imprisonment and fines. The position has always been that the Bureau will always take a tough stance against those who are corruptible. This zero tolerance approach has been the mark of the Bureau since its inception more than 25 years ago. This tough strategy is hoped to act as a strong deterrence against those who are tempted to commit the corrupt offences.

However as we all say, prevention is better than the cure.  All public servants must 

When can a gift be a corrupt gratification?

I am often asked this question when can a receipt of a gift be considered a corruption offence? well the exact question should be when can a gift be considered as a corrupt gratification? As public officers we will inevitably come across with members of the public who will give us presents or gifts in certain occasions such as your birthdays, their visit to your office etc.

There are rules in the General Order or Perintah Am which govern the receipt of gifts or presents given to public officers.  The General Order or commonly called the GO is the primary regulation that governs the conduct and discipline for public servants in Brunei.  This is a subsidiary legislation under the Public Service Commission Act.  As the name of the Act suggests, the competent authority that governs the enforcement of this Act is the PSC.  The regulation lays out carefully how public officers should handle gifts or presents.  The very basic rule is that you can accept gifts if they are from your relatives or friends.

However I should stress here that you are absolutely prohibited under the Prevention of Corruption Act if the gift is tainted with corrupt intent even if it is from your relative or friends.  Let me give you an example.  Lets say that my father gave me a rolex watch for my birthday.  It is obvious that under the GO I could accept it as my father is considered a "relative".  But if I knew that he wanted to give that Rolex watch hoping that I would stop investigating him for an alleged corrupt offence then I should not accept that gift as it is already tainted with a corrupt intent.  But how would I know that the gift is tainted with corrupt intent as intention is intangible? This is very true and in criminal law we call this the "mens rea" or the state of mind of the person who gives (in the case of the briber) or the person who receives (in the case of the bribee) .  To answer this question you would have to look at the circumstances the gift was given.  As a public officer you would know these circumstances. If you received a Rolex watch from your friend who is bidding for a contract in your department, that is one circumstance that the gift is tainted and you should not accept the gift.

If you received gifts from members of the public who have official dealing with you, even if they are your friends, then you must tread on this carefully as it is easier to see that the giving of these gifts as tainted.  This is because the members of the public who give you these gifts are expecting that their dealings with you can be "greased".  This is where the acceptance of the gifts can make you run foul of the law.

Section 165 of the penal code even prohibits you as a public servant from receiving anything of value from members of the public who have official dealings with you without any consideration or the consideration of which you knew is inadequate.  What does this mean? well to put this simply, if you were owed $500 from a friend who happened to have official dealing with you, the repayment of that debt to you would be an adequate consideration. Hence no offence is committed. But if the same $500 was given to you for approving a licence that your friend applied to your office even if you would have approved the licence with or without the $500, you would commit an offence under section 165 of the Penal Code. 

What is corruption?

There is no single universal definition of corruption.  But the simplest form of definition is "an abuse of authority or office for personal gain". Transparency International focuses more on the "abuse of public office for personal gain". The main law that criminalises corruption in Brunei is the Prevention of Corruption Act which can be found in Chapter 131.

Black's Law dictionary defines corruption as "an act done with an intent to give advantage inconsistent with official duty and the rights of others.  The act of official or fiduciary person who unlawfully uses his status or character to procure some benefit for himself or for another person contrary to duty and the rights of others" 

Corruption involves the dishonest or preferential use of power or position or organisation being advantaged over another.

Under our laws, corruption is the solicitation, receiving or agreeing to receive, giving, promising or offering any gratification as an inducement or reward to a person to do or forbear to do any act, with a corrupt intention.

Gratification can be a gift, service, favour or any advantage, money, loan or fees, reward or anything of value.

So if a licensing officer asked for $200 or anything of value from you say, a top up easi card, he is committing a corruption offence.

If a police officer asked for $200 to let you off from a speeding offence, he is also committing a corruption offence.

What you must know about corruption offence in Brunei..

1. It is an offence to give or receive a bribe.

2. It is not necessary to prove that the receiver of a bribe is in the position to carry out the required favour for the purpose of conviction.

3. Any gratification received by a public officer is presumed corrupt, unless the contrary is proven.

4. Public officers under investigation may be required to furnish sworn statements on their properties.

5. You can be charged for possession of wealth disproportionate to your regular income.

6. Brunei citizens are liable for corrupt offences committed outside Brunei.